The petition covers similar territory as the demurrer motion from last August: The defense argues that UC was the employer and Harran merely a supervisor. California Labor Code section 6425(a) makes it a crime for “Any employer and any employee having direction, management, control, or custody of any employment, place of employment, or of any other employee” to willfully violate an occupational safety or health standard in such a way that causes death or permanent or prolonged impairment of the body of an employee. Nevertheless, Harran’s attorneys write, the specific occupational safety and health regulations Harran is charged with violating reference either employer or no one at all (Title 8, sections 5191(f)(4), 3203(a)(6), 3383(a), and 3383(b)). Other regulations do call out supervisors. From the petition:

In the regulatory scheme, Cal/OSHA thus specifically identifies supervisors as the party legally responsible for certain acts when it deems necessary. In other circumstances, it simply prescribes duties of employers, and leaves to the employer how to divide responsibility for internal implementation of the safety standards. There is no principled justification to disregard the expressed policy preferences of the administrative body charged with promoting workplace safety in this state.

The two arguments filed this week were from the Los Angeles County District Attorney’s Office, in opposition to the petition. One, the “Opposition to request for judicial notice,” argues that the appellate court should not consider exhibits submitted by Harran’s team to support the petition. “The court may not consider outside facts on a demurrer, and may only consider questions of law relevant to the facial sufficiency of the pleadings,” the opposition document says.

Harran stated to investigator Baudendistel that although Sangji’s payment was administered through the UCLA payroll department, the funds were from his research funds and “other funds that he controlled.” (Exh. 3, p. 91.) Sangji came to work for UCLA in response to an ad Harran placed. (Ibid.) Harran was responsible for the recruitment and hiring for his lab, and he conducted the job interviews. (Ibid.) According to Harran, it was he, not the UC, who was responsible for Sangji’s safety training because of her “classification by the University.” (Id. at p. 92.) Since Harran was in charge of the lab (id. at p. 90), presumably he controlled her day-to-day activities. The totality of these conditions seems to create a strong suspicion that Sangji was “any natural person in service” of Harran. (§ 3300, subd. (c); § 6304.) …

Under [the sponsored project] arrangement, Harran appears to administer an independent project with outside funding with support from the UC. Under this arrangement, he therefore shares employment responsibilities with the UC.

And regardless, he is liable as either an employer or supervisor:

In assigning criminal liability to supervisors, the Labor Code recognizes the basic truth that all companies must act through their employees. …

These examples show that the regulations do not establish a rigid scheme of employer duties, with the occasional imposition of a supervisory position. Rather, they should be given a common-sense reading in line with the reality of how firms operate. The more appropriate interpretation is that the regulations describe safety standards to be implemented by firms in a practical manner depending on their size and structure. As discussed ante, the Labor Code then becomes the relevant source of criminal or civil liability. It does not appear that the broad liability seemingly imposed by section 6425 is artificially limited by the regulations to only those instances where they impose specific duties on a “supervisor.” The more reasonable approach is to apply the plain meaning of section 6425 and impose criminal penalties on supervisory employees who have actually been given safety responsibilities by their employer, and who willfully violate those duties.

Replies to the opposition arguments are due to the court on April 30. Harran’s next status check with the trial court is on June 5, although the trial cannot proceed until the appellate court rules.

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